Rance v Police - [2008] SASC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RANCE v POLICE
[2008] SASC 19
Judgment of The Honourable Justice David
5 February 2008
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IMPEACHMENT OF CREDIT AND ADMISSIBILITY OF EVIDENCE AS TO CREDIT - PRIOR CONSISTENT STATEMENTS
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - CORROBORATION - WHAT CONSTITUTES CORROBORATION
EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - ONUS OF PROOF
Magistrates Appeal - appeal against conviction - common assault - whether magistrate erred in using out of court statements to enhance credit of victim - whether magistrate erred in using evidence of other witness to corroborate victim - whether magistrate reversed the onus of proof.
Held: Appeal allowed - no error in magistrate's use of out of court statements - magistrate erred in using evidence of other witness to corroborate victim's evidence - magistrate erred in reversing the onus of proof.
Criminal Law Consolidation Act 1935 (SA) s 39(1), referred to.
Palmer v R (1988) 193 CLR 1, applied.

RANCE v POLICE
[2008] SASC 19
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against a conviction for common assault. The appellant appeals on the basis that the magistrate:
·erred in using out of court statements of the alleged victim (hereinafter referred to as “V”) to enhance her credit;
·erred in using the evidence of a witness, Mr Treloar, to corroborate V’s evidence; and
·reversed the onus of proof.
Background
The appellant resided in a managed rental property, which she shared with another person, Mr David Foreman. A routine inspection of the property was scheduled for the afternoon of 12 April 2006. The property manager who supervised the rental of the property was unable to attend on that date, and he asked V, who was also a property manager, if she could attend on his behalf, with a trainee property manager, Mr Ben Treloar. V was informed that there was an issue about a blind in the main bedroom and she was asked to take a photograph of it.
V and Mr Treloar attended the property on the day in question. Mr Treloar conducted most of the inspection. V had a digital camera and took a photograph of the blind in the main bedroom. The tenants became upset and asked V to leave the premises. A discussion took place between the parties, during which V indicated that she needed to be present because Mr Treloar was only a trainee property manager. The two tenants remained agitated. The prosecution case at trial was that during this argument, both tenants made physical contact with V. This contact was alleged to have involved the appellant striking V on the shoulder, and Mr Foreman allegedly grabbing V’s hands and “shoving” her out the front door, which caused her to fall over.
Both tenants were charged with assault, contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA). Mr Foreman pleaded guilty and the appellant pleaded not guilty. The trial commenced and concluded on 27 September 2007. At trial, the prosecution called V and Mr Treloar. V gave evidence that during the altercation she was struck by the appellant and grabbed and pushed by Mr Foreman. Mr Treloar gave evidence that he was unable to say whether an assault had taken place on V, but that he saw what happened immediately before the alleged assault. He could not assist the court in relation to what had occurred at the actual time of the alleged assault. The appellant gave evidence and called Mr Foreman. She denied striking V or assaulting her in any way, and said that she continually asked V to leave the premises. Mr Foreman, who had pleaded guilty, gave similar evidence.
The magistrate convicted the appellant of assault and delivered the following ex tempore judgment, which I set out in full:
[Ms Rance] has been charged with assaulting the victim in this matter, [V]. She has pleaded not guilty.
[V] is a property manager. She had gone to the residence of Mr Foreman and Ms Rance for the purpose of an inspection.
P1 shows the notice of intention to attend on that day.
I note that at the time of the entry of [V] and Mr Treloar to the premises no objection was made to her entering by either Ms Rance or the co-tenant Mr Foreman and in relation to the issue of whether they had a legal right to be there or not, I note this incident had some sequel in the Residential Tenancies Tribunal where the issue was mentioned but there was no finding by that tribunal that they had no right to be there. I would be surprised if in fact, the Tribunal had reached the conclusion that they had no right to be there at that time.
Apparently Ms Rance and Mr Foreman became indignant when [V] took a photograph of a Holland blind in the bedroom. Things escalated from there.
I will not go into the details suffice to say that [V] has given evidence in this court about what has happened. I am satisfied that the evidence that she gave in court today was similar to the statement she gave to the police on the same day very shortly after the incident occurred, and although not in as much detail, for the obvious reason that it wasn’t the subject of criminal proceedings, she also gave similar evidence in the Residential Tenancy Tribunal hearing.
I note that Mr Foreman was a co-offender and pleaded guilty to this charge.
Apart from hearing [V]’s evidence about the matter I also had the benefit of hearing evidence from Mr Ben Treloar, a trainee property manager who was with her on the day and who was meant to be conducting the inspection on behalf of another colleague who couldn’t attend.
Mr Treloar required the assistance and supervision of [V] as a senior and experienced property manager.
His evidence is that although he didn’t see the assault itself occur on [V] by Ms Rance he saw what happened immediately before it. He saw both Mr Foreman and Ms Rance standing within 12 inches in front of [V]. He said that he felt in fear and he thought that [V] would be in fear too. He heard raised voices and saw aggressive behaviour.
Regrettably he cannot help us with what occurred as to the actual assault as described by [V]. However he also corroborates important evidence about a phone call or a threat of a phone call made by [Ms Rance] and he corroborates [V]’s evidence about [Ms Rance] saying that she would allege that she had been assaulted by [V] in order to gain police attendance and have [V] evicted from the property. This evidence lends credibility to the evidence of the victim and indicates [Ms Rance] is lying.
I am satisfied that there had been no reason at all for [V] to concoct the story about being assaulted by Ms Rance. I doubt whether there would be any monetary gain to be made by it.
The assault was extremely minor. Whatever injuries [V] suffered they seem to have resolved themselves over the Easter weekend.
From the photograph[s], the injuries appear to be very minor. The allegations of what she tells me that Ms Rance did to her fall at the lower end of the scale of an assault and amount to not much more than a lashing out and aggressive loud language. Mr Foreman’s behaviour on the other hand was of a different class. Mr Foreman was the main perpetrator and Ms Rance played a much more minor role.
That is indeed as I find the facts to have evolved today.
I find [V] and Mr Treloar to be witnesses of truth. Their evidence corroborated one another and I find the version of events by [V] to be the true version of events.
I find the charge proved beyond reasonable doubt.
The magistrate recorded a conviction against the appellant and fined her $100.
Appeal
At the hearing of the appeal, the appellant applied to amend the grounds of appeal. The respondent consented to this, and I therefore ordered that the grounds of appeal be amended. I also granted an extension of time, as the notice of appeal had been filed one day late, but the delay did not cause any prejudice to the respondent.
On appeal, the three primary issues were:
1.whether the magistrate erred in using out of court statements of V to enhance her credit;
2.whether the magistrate erred in using Mr Treloar’s evidence to corroborate V’s evidence; and
3.whether the magistrate reversed the onus of proof.
There were other, less fundamental, complaints made by the appellant, but in light of my findings on these primary issues, the other arguments do not need to be considered.
The appellant argues that the magistrate erred in using out of court statements of V to enhance V’s credit. At trial, the appellant attempted to prove that details in the evidence given by V on oath, about the physical contact between her and the two tenants, were different to the details in her statement given to police on 12 April 2006. Counsel suggested to V that, when she gave her statement to police, she did not say that the appellant was hitting her at the same time as her hands were being restrained up against her neck by Mr Foreman.
V’s evidence on this issue during evidence-in-chief was:
Q.Having moved to the family room and offered to stay there and allow [Mr Treloar] to continue the inspection can you tell me what happened from there.
A.… [Ms Rance] came across from that side of the room and started hitting me on my shoulder. I put my hand up and [Mr Foreman] grabbed them and I tried to get that hand off him. He grabbed my other hand and pushed them back so I was standing like this and [Ms Rance] was hitting me here [indicating her left upper arm area].
Q.You also indicated you had your hands up by your throat. Can you explain to me.
A.[Mr Foreman] was holding them here [indicating that the wrists of both hands were being held up around her throat area and her hands were pressed up around her throat area].
Q.Can you tell me what happened from there.
A.[Mr Foreman] continued pretty much at the top of his voice saying “out, out” and he was pushing forward on me and making me go backwards. [Ms Rance] kept hitting me for a while and then she stood back. I can’t remember how the front door was open, it must have been flung because it swung back and broke the glass next to it and [Mr Foreman] who still had me here [indicating] sort of shoved me out because I fell out and landed in the garden at which stage the door was shut …
…
Q.You mentioned as Mr Foreman was holding your wrists and pushing you out towards the door you said [Ms Rance] kept hitting you. Can you tell me how she was hitting you.
A.She was standing fairly close, David Foreman was here [indicating Mr Foreman was standing to her front and the appellant was standing to her front left side]. She had both hands and was going like this [indicating a hammering motion with the upper arm parallel to the ground].
Q.Do you recall whether her hands were open or closed.
A.I’m not 100 percent sure.
…
Q.Was that occurring as you were being pushed out the door by Mr Foreman.
A.She started when I was stationary and continued while I think probably the first couple of steps then she backed out.
Her evidence on this matter in cross-examination was as follows:
Q.You have never told the police what you did today in court, namely that Mr Foreman was holding your two wrists together up against your chest, while Ms Rance was attacking you.
A.I believe I did.
Q.… when you gave your statement to the police, you didn’t say that at the same time your hands were being restrained up against your neck by [Mr Foreman], [Ms Rance] was hitting you at the same time. Is that correct.
A.That’s what I told the police happened.
Q.You did tell the police that?
A.Yes.
…
Q.If you turn to page three [of your statement to the police] in fact if you go to page two at the bottom of that statement. First, you have said quite clearly, three incidents occurred; Mr Foreman pushed up with his chest yelling “out, out” and then follows the incident where Ms Rance is alleged to have attacked you; meanwhile you had [Mr Foreman] facing you, and you put your left hand up to fend off [the appellant’s] hits. It was then that you say Mr Foreman grabbed your left wrist, right hand, and so forth. That is when the incident involving Mr Foreman took place. “[Ms Rance] stepped back at this stage and I couldn’t see where [Mr Treloar] was. [Mr Foreman] kept pushing me to level with the front door, eight to ten feet away.” Do you agree that the way you have recounted the incident today, is different to the way you have put it in your statement.
A.No, I don’t.
Q.I put it to you that Ms Rance at no stage touched you.
A.That’s incorrect.
Q.I put it to you that she did not continuously hit you with both of her fists, as you have described to this court.
A.That’s incorrect also.
On re-examination, the following questions and answers were given:
Q.Earlier on my learned friend asked you to refer to your statement. I shall do the same. This statement you have provided to the police, can you please read for me from the bottom of page two where I have marked, just continuously until through to page three where I have also marked.
A.[Mr Foreman] then came up face to face with me, pushing me with his chest and yelling “out, out”. [Ms Rance] then came from the left side of me and began hitting me on the left upper arm and left side of my chest. I couldn’t see where [Mr Treloar] was and I couldn’t see where the kids were. [Ms Rance] was hitting me continuously with both fists, but not very hard. I had [Mr Foreman] facing me and I put my left hand up in front of me to block [the appellant’s] hits. [Mr Foreman] grabbed my left wrist [with his] right hand, and he then grabbed my right wrist with his left hand. I was trying to release his hold and he ended up holding both my wrists against my throat, and pushing me backwards. [Ms Rance] had stepped back at this stage and I couldn’t see where [Mr Treloar] was. [Mr Foreman] kept pushing me until we were about level with the front door which was about eight to ten feet away.
Q.Is it fair to say that is your version of one continuous act that was occurring at the time.
A.Yes it is.
With respect to this evidence, the magistrate said:
… I am satisfied that the evidence that [V] gave in court today was similar to the statement she gave to the police on the same day very shortly after the incident occurred …
The appellant contends that no determination was made as to whether V’s evidence on oath and her previous statement to police were consistent or inconsistent. The appellant suggests that the magistrate therefore erred in finding that the two statements were similar and that the similarity served to bolster the credit of V.
I disagree. My view is that the magistrate’s remark, that the evidence given in court is similar to the account given to police, indicates that he determined that there was no inconsistency between the two accounts given by V. It appears that the magistrate was trying to indicate that, despite attempts by counsel to identify a previous inconsistent statement, he did not find the two accounts to be inconsistent.
At trial, the appellant also pursued inconsistencies between V’s evidence on oath and testimony she had previously given at the Residential Tenancies Tribunal (hereinafter referred to as “the Tribunal”), on 18 April 2006. However, the magistrate found that:
… although not in as much detail, for the obvious reason that it wasn’t the subject of criminal proceedings, [V] also gave similar evidence in the Residential Tenancy Tribunal hearing.
The appellant argues that this is an error because there were inconsistencies.
During evidence-in-chief, V said:
… At that stage [Ms Rance] went across to the far side of the family room and said “I’m going to ring the police”. I said “that would be a really good idea.” At which stage she just said to me, she said “No you don’t understand, I’ll tell them you’ve assaulted me, I’ll tell them anything to get you into trouble.” I said “let’s just get them here and we’ll worry about it later”.
During cross-examination, V was shown a copy of the transcript from the Tribunal hearing she had attended. She agreed that she had not said during that hearing that the appellant had threatened to make a false complaint about an assault. However, the Tribunal transcript indicated that V testified that the appellant said she would phone the police and that she told the appellant she thought that would be a good idea.
My view is that the magistrate’s reasons indicate that, while it was identified during cross‑examination that not all details of the appellant’s threat to call the police were included in V’s Tribunal testimony, this could be explained on the basis that not all of the details relevant to a criminal hearing would have been relevant to the Tribunal hearing. A review of the Tribunal transcript indicates that while the evidence given to the Tribunal is less comprehensive than that given in court, it is not inconsistent with that given at trial.
Finally, there is no suggestion in the magistrate’s reasons that his findings of similarity, between V’s prior statements and her evidence on oath, were used to enhance her credibility. It appears more likely, given counsel’s attempts to identify prior inconsistent statements, that the magistrate was merely indicating that he did not find that there had been any prior inconsistent statement that would affect her credibility.
This ground of appeal must therefore fail.
The appellant also appeals on the basis that the magistrate erred in dealing with the evidence of the second property manager, Mr Treloar, and its impact upon his decision.
In his judgment, the magistrate said:
[Mr Treloar’s] evidence is that although he didn’t see the assault itself occur on [V] by Ms Rance he saw what happened immediately before it. He saw both Mr Foreman and Ms Rance standing within 12 inches in front of [V]. He said that he felt in fear and he thought that [V] would be in fear too. He heard raised voices and saw aggressive behaviour.
Regrettably he cannot help us with what occurred as to the actual assault as described by [V]. However he also corroborates important evidence about a phone call or a threat of a phone call made by [Ms Rance] and he corroborates [V]’s evidence about [Ms Rance] saying that she would allege that she had been assaulted by [V] in order to gain police attendance and have [V] evicted from the property. This evidence lends credibility to the evidence of the victim and indicates [Ms Rance] is lying.
The appellant argues that the evidence of Mr Treloar, referred to by the magistrate, is only corroboration of a peripheral issue, not the core allegation (which Mr Treloar did not witness). As such, to find that
this evidence lends credibility to the evidence of the victim and indicates [Ms Rance] is lying
is to take too great a step. Added to that, in assessing the credibility of V, the magistrate said:
I am satisfied that there had been no reason at all for [V] to concoct the story about being assaulted by Ms Rance. I doubt whether there would be any monetary gain to be made by it.
Both of these passages in the magistrate’s reasons have caused me some concern. In a case where the facts are strictly confined and depend upon the assessment of two opposing witnesses, without the assistance of any supporting evidence as to the core issue, I find that it is an error to rely upon “corroborating” evidence about merely peripheral matters in finding that the appellant is not to be believed. I am also of the view that, in the circumstances of this case, it is an error to consider V’s lack of motive to lie as being relevant to the issue of whether the appellant is to be believed.[1] Although this may go to findings of credibility, the way in which this has been expressed by the magistrate suggests that there was some onus upon the appellant to establish a reason for V not to tell the truth. That, of course, is incorrect, and is effectively reversing the onus of proof.
[1] Palmer v R (1998) CLR 1, 10.

The appeal should therefore be allowed.
Conclusion
The appeal is allowed. The matter will be remitted to the Magistrates Court for re‑trial, before a different magistrate.